Citation: R v Green and Quinn [2010] NSWCCA 313
Court: NSW Court of Criminal Appeal
Date: 17 December 2010
Judges: Allsop P, McClellan CJ at CL, Hulme J, Latham J, McCallum J
Background
Two respondents, Green and Quinn, were sentenced in the District Court by Boulton ADCJ on 14 August 2009 following their involvement in the large-scale commercial cultivation of cannabis plants. Both had pleaded guilty, and the sentencing judge granted discounts for the utilitarian value of those pleas. The Crown appealed on the ground that the sentences were manifestly inadequate.
Green and Quinn were involved in managing and carrying out tasks incidental to an operation that included substantial numbers of cannabis plants. The operation was run for financial gain, with the offenders expected to see it through to harvest. Both reported to a third party who held a higher position in the enterprise.
The Crown appeal raised fundamental questions about how the parity principle operates when one co-offender has already received a sentence that is, on the Crown's submission, unjustifiably lenient.
Legal Issues
- Whether the sentences imposed were manifestly inadequate for offences involving a large commercial quantity of cannabis plants
- Whether the Court of Criminal Appeal could, on a Crown appeal, impose sentences that created or widened disparity between co-offenders where an earlier sentence was itself inadequate
- What constitutes the "earliest possible opportunity" for a plea of guilty, for the purpose of calculating the utilitarian discount
- Whether the sentencing judge was required to make an explicit finding as to the objective seriousness of the offences
- How prior decisions of the Court bearing on sentencing for large commercial cannabis cultivation were to be approached
Decision
The majority of the Court (McClellan CJ at CL, Hulme J, Latham J) allowed the Crown appeal and re-sentenced both respondents, finding the original sentences manifestly inadequate. Allsop P and McCallum J dissented, concluding the Crown appeals should be dismissed, principally on parity grounds arising from the sentences already imposed on other participants in the enterprise.
The majority confirmed that the Court of Criminal Appeal may, on a Crown appeal, impose sentences that create disparity with co-offenders where those co-offenders' sentences were themselves manifestly inadequate. The parity principle, while an aspect of equal justice, cannot compel a court to perpetuate or replicate manifest error. As the Court noted by reference to established authority, multiplying wrong decisions in the name of consistency undermines rather than supports public confidence in the administration of justice.
On the utilitarian value of a plea, the Court examined what "earliest possible opportunity" means in this context. A full discount is not automatically available simply because an offender pleaded guilty before trial; the timing and circumstances of the plea are relevant to quantifying the discount. The Court also found that a sentencing judge must make a finding, or at least articulate a view, about the objective seriousness of the offending, as this finding underpins the entire sentencing exercise.
The Court reviewed the range of sentences imposed in comparable cases involving large commercial quantities of cannabis, including cases with thousands of plants and sophisticated growing operations, and concluded that the sentences imposed by Boulton ADCJ fell outside the range reasonably open on the facts.
Orders Made
- Crown appeal allowed
- Sentences imposed by Boulton ADCJ on 14 August 2009 quashed
- Brett Andrew Green sentenced to a non-parole period of 3 years commencing 17 May 2009, with a further term of 2 years commencing 17 May 2012
- Shane Darrin Quinn sentenced to a non-parole period of 5 years commencing 30 April 2008, with a further term of 3 years commencing 30 April 2013
Key Takeaways
- The parity principle, grounded in equal justice, does not prevent the Court of Criminal Appeal from imposing a sentence on a Crown appeal that creates or increases disparity between co-offenders where the earlier co-offender's sentence was manifestly inadequate to a significant degree.
- A Crown appeal serves a broader systemic purpose beyond correcting the sentence of a particular individual: it promotes consistency in sentencing and the proper articulation of sentencing principles, even where disparity results.
- Sentencing for offences involving a large commercial quantity of cannabis requires an explicit finding, or at least a clear assessment, of the objective seriousness of the offending, as that finding anchors the entire sentencing exercise.
- The utilitarian value of a guilty plea is not a fixed discount applied mechanically; the timing of the plea and what it spared the justice system are relevant to the weight it receives.
- In dismissing the Crown appeal, the minority (Allsop P and McCallum J) applied parity considerations more conservatively, reflecting that the principle operates differently in the context of Crown appeals compared with offenders' appeals, and that the Court's discretion to dismiss even a meritorious Crown appeal remains intact.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act, ss 23(2)(a), 33(3)(b)
- Crimes (Sentencing Procedure) Act 1999, s 54A
- Crimes (Sentencing Procedure) Amendment Act 2007, ss 13, 16
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Cases:
- R v Thompson and Houlton (2000) 49 NSWLR 383
- Wong and Leung v R [2001] 207 CLR 584
- Markarian v R [2005] 228 CLR 357
- R v McEvoy [2010] NSWCCA 110 (not followed)
- R v Sellars [2010] NSWCCA 133
- R v El Chammas [2009] NSWCCA 154
- R v Borkowski [2009] NSWCCA 102
- Jimmy v R [2010] NSWCCA 60
- R v Way (2004) 60 NSWLR 168
- R v McIvor [2002] NSWCCA 490
- R v Cannistra [2006] NSWCCA 389
- R v Ismunandar and Siregar [2002] NSWCCA 477
- R v Doan (2000) 50 NSWLR 115
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295